An anonymous blog about constitutional law, politics, and the right to keep and bear arms.

Thursday, May 26, 2011

Why we shouldn't use the Terrorist Watch Lists to prevent firearms purchases

The Terrorist Watch Lists
This is my first post on this, my new blog. The recent uproar over the fact that we don't use the "Terrorist Watch List" to prevent people from buying firearms has inspired me to write a little bit about my feelings on this matter and others.

First, a bit about the "Terrorist Watch List." There is not just one of them. There are 13.[6] So I will refer to them in general as terrorist watch lists, and to specific lists by name when necessary. Each of a number of government organizations, including the FBI and the TSA maintain their own form of a terrorism watch list. The FBI calls their list the Terrorist Screening Database, for example.[1] The TSDB consists of over 1 million names, with about 20,000 more added each month.[2] With the FBI adding roughly 700 people to their TSDB every DAY, one must wonder how good a list this is.

The No Fly List is slightly more restrictive, but is also fraught with problems. As with other burgeoning lists of this type, it includes a number of "false positives" - people who have been added in error or happen to have the same name as a genuine suspected terrorist and face additional screening and hardship as a result. These "false positives" include US Army Col. Robert Johnson (ret.) [and at least 12 other people with the same name], US Congressman John Lewis, and several members of the Federal Air Marshall Service, who have been unable to board and protect some flights as a result.[3]

As you no doubt recall from your US history class, amongst the rights deemed important enough to be listed by the Framers (aka "founding fathers") in the Bill of Rights is the 5th amendment, which in part states that we shall not be "deprived of life, liberty, or property, without due process of law." The TSA and the FBI have deemed fit to deny people the right to fly without a trial, being permitted to speak for themselves, or any other scintilla of due process. It doesn't take much to get added to one of these mysterious watch-lists. PIn the best cases, it seems that we have some suspicion of a person, and that is sufficient to add them to the list, and in other cases, they made someone in power angry, and are now being harassed for it. This is the case of 53 nonviolent political activists from Maryland who were added to the several terrorist watch lists by their state police, before being removed after a media fiasco.[5]

According to the Inspector General of the Justice Department, 35% of the names on the FBI's list were added based on outdated and potentially incorrect or irrelevant information, and tens of thousands of names are added "without predicate,[7]" meaning that no justification was provided for adding a given name to the list(s). This of course, calls into question whether any justification existed, or is even needed to add a person to the list.

The bottom line is this:
- The lists are kept secret by the various government entities which maintain them
- The lists are growing at an alarming rate; over 20,000 names per month in some cases
- The people on the lists have not necessarily done anything wrong, have not sat before a jury of their peers, and in some cases are model citizens
- It is easy to get put on a list, hard to get removed, and being on one of these mysterious lists deprives you of certain privileges without due process
- AT LEAST 35% of the people on certain lists shouldn't be there
- The lack of due process is a slap in the face to the Bill of Rights and the basic freedoms that every American is "guaranteed."
- 95% of the people on the consolidated watch list are not US citizens [8]

Now, on to Firearms.

The Right to Keep and Bear Arms

First and foremost, I want to talk about the 2nd Amendment and the Bill of Rights, and provide a few quotes that will help put the 2nd amendment into perspective. The second amendment is one of ten amendments to the US constitutions that were ratified in 1791, having been deemed sufficiently important to enumerate individually, and which are collectively referred to as the Bill of Rights.[9] These include the freedom of speech, the right to keep and bear arms, protection from unreasonable search and seizure, right to a speedy trial, right to trial by jury, etc.

The second amendment reads as follows:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. [10]

A major point of discussion here is whether the 2nd amendment protects the right of individuals to bear arms, or the right of the militia to bear arms. That is discussion that I will save for another day. For now I will just say this: in District of Columbia v. Heller and in McDonald v. Chicago, the United States Supreme court has upheld the fact that the Second Amendment protects an individual's right to possess a firearm, unconnected to service in a militia.[10]

I agree with their decisions, but rather than going into a lengthy legal diatribe, I'll just provide some quotes from the founding fathers that I think speak to their intentions in drafting and ratifying the 2nd amendment. Bear this in mind: in the months and years leading up to the American Revolutionary War, when the Colonists were increasingly upset with their foreign rulers, and sought to preserve their way of life and certain freedoms for themselves, Parliament had passed measures to prevent them from getting weapons. All of these Patriots had, after the failure of a number of peaceable attempts to make amends with their British rulers, turned to war to protect their freedoms. Had the British been able to effectively disarm the colonists, the revolutionary war may never have happened. The Framers were keenly aware of this fact in preserving the individuals' right to bear arms, as a last resort for resisting tyrannical government.

"And that the said Constitution be never construed... to prevent the people of the United States, who are peaceable citizens, from keeping their own arms;…" Samuel Adams, as quoted by the Philadelphia Independent Gazetteer on August 20, 1789

"The great object is that every man be armed ... Everyone who is able may have a gun." Patrick Henry, 3 Elliot, Debates at 386

"The laws that forbid the carrying of arms.... disarm only those who are neither inclined nor determined to commit crimes....Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."Thomas Jefferson's "Commonplace Book," 1774-1776, quoting 18th century criminologist Cesare Beccaria in Chapter 40 of "On Crimes and Punishment", 1764.

So, I think it's pretty clear that US Citizens have the right to keep and bear arms. It's in the constitution, the supreme court has upheld it (including keeping arms without serving in the militia), and their intentions are evident from some quotes from the founding fathers themselves. Who better to assert the individual right to bear arms - the founding fathers had just fought a war where their individual ownership of arms made possible their insurgency against a tyrannical government.

OK. At last, we are ready to talk about why the Terrorist Watch Lists should not be used to prevent people from buying Firearms.

Why the Terrorist Watch Lists should not be used to prevent people from buying firearms

Ethics:
- People on the TWL may not know they're on the list, and being unable to buy a firearm would tip them off that they have been flagged as suspicious by some government agency
- People mistakenly or erroneously on the TWL have a hard time getting off of it

Legality:
- Flying can be argued to be a privilege, but keeping and bearing arms is a constitutional RIGHT under the 2nd amendment [10]
- People cannot be deprived of their rights without due process under the 5th and 14th amendments [4]
- Since there is no due process (no jury, no trial, and none of the other trappings of democracy and self-government) behind adding individuals to the list, it is unconstitutional to deprive people of ANY right, including the right to keep and bear arms.

Practicality
- 95% of the people on the TWL are not US Citizens[8], and are ineligible to buy handguns anyway under the Brady Handgun Violence Prevention Act.[11]*
- We can't keep felons from obtaining guns illegally[12], do we really expect to be able to prevent terrorists from obtaining guns illegally? They're terrorists. They don't care about the law.

That's enough for now. I'll probably add more to this later. Bottom line is that it is unconstitutional, unethical, and impractical to suggest that the Terrorist Watch Lists be used to prevent people from buying guns.

*Note that while the Brady Handgun Violence Prevention Act prevents any foreign national from purchasing a handgun, it does not address long rifles or shotguns. This matter is left to the states, and some permit non-US Citizens to buy rifles and shotguns (but not handguns). Either way, if foreign nationals are to be kept from owning long rifles, the TWL is not the mechanism for achieving this.